General Terms of Sale
The following General Terms and Conditions of Sale apply exclusively to all purchase agreements. We accept other terms, in particular those of the purchaser, only on a single case and exceptional basis and subject to our prior written approval. The delivery of goods does not infer that the terms and conditions of the purchaser are accepted. Acceptance of delivery shall be deemed conclusive evidence of the buyer’s acceptance of these General Terms and Conditions of Sale. These General Terms and Conditions of Sale shall be governed by the laws of Federal Republic Germany.
§ 1 Offer and Acceptance
1. All our offers are subject to confirmation. We shall only be bound by such orders which we have confirmed or which we have started to carry out. This applies also to all amendments and additions of the contract or additional oral agreements.
2. Customs duties, taxes and other duties that increase after the conclusion of the contract shall be borne by the buyer.
§ 2 Quality
1. The quality of the materials is in accordance with the specifications set out in the product information sheets. Variations thereof require an explicit agreement.
§ 3 Prices and Terms of Payment
1. All our prices are generally non-binding. Prices are specified in our annually updated price lists and are deemed as „ex works”. In case of follow-up orders we are not bound by earlier prices.
2. The prices do not include value added tax. Value added tax will be stated separately on the invoice and will be calculated on basis of the legally applicable rate on the invoicing date.
3. All payments shall be made within 30 days after the date of the invoice without deduction. All payments shall be made to the deliverer. The applicable currency is EURO. Our invoices will be sent electronically via e-mail (unless an objection is filed).
4. Amounts not paid within the payment period shall bear interest at a rate of 12%.
5. Payments will be used to settle the oldest amounts due plus accrued default interest and other costs, and in the following order: Costs, interest, principal claim.
6. The buyer is not entitled to withhold payments. The buyer may set off his payments only against such claims, that are undisputed, accepted by us or that have become legally effective.
7. If the buyer is delinquent in paying a single invoice amount that might have a considerable impact on the business relation, all claims arising from the business relation become immediately due. In such case we shall be entitled to require payment in cash before any further shipments are made. If the default in payment is not remedied within a reasonable time limit, we shall be entitled to terminate the contract and claim damage compensation for non-performance of the contract. This applies in particular to follow up orders that have been agreed but not carried out. Should we discover facts, which prove that buyer is not credit-worthy, we shall be entitled to request payment of all outstanding debts and payment in cash for all future shipments even if otherwise agreed before.
§ 4 Date of Delivery
1. Date of delivery shall be the day when the goods leave the factory or the warehouse.
§ 5 Delivery and Transfer of Risk
1. Delivery shall be made generally ex works in accordance with the currently valid INCOTERMS.
2. Allresist undertakes the tasks of selection/commissioning and delivery of goods to the transport company and to the place of destination. Transport costs to the place of destination will be charged to the buyer. Additional costs caused by special shipping requests of the buyer (e.g. 24 h delivery, transport insurance, higher liability agreements with the freight carrier etc.) are at the buyer’s expense.
3. The assumption of risks (e.g. for accidental loss of the goods or in the event of accidental deterioration due to damage, exceeded delivery times) and the liability is passed on to the transport company upon release of goods by Allresist or, in the case of collection by the buyer, by the time they are placed at the buyer’s disposal.
4. If buyer collection was agreed, the buyer or his representative shall be responsible for loading the vehicles for transportation and for compliance with all legal provisions in relation to the transport of dangerous goods.
5. Costs arising from impediment or delay of the transport shall be borne by the buyer. If we accept returned goods in part or in full, the buyer shall bear the costs arising thereof in any case, unless the return is in consequence of a legitimate complaint.
6. We may deliver the goods in instalments or prior to the agreed delivery date. If we notify the buyer of the date of an early delivery or a delivery in instalments, the date when the buyer’s obligations, also his payment obligations, become due shall be forwarded accordingly.
7. If it was agreed that the buyer collects instalments within a certain period and the buyer does not collect them within such period, we shall be entitled at our own discretion to invoice the corresponding instalments or to withdraw from the contract without extension of time.
8. Our obligation to deliver shall cease in case of suspension of payments, opening of insolvency proceedings or liquidation of the buyer.
§ 6 Returnable Packaging
1. Where the goods are delivered in returnable packaging the buyer shall be obliged to return these empty and in good order within 4 weeks after receipt. The costs and risk of return shall be borne by the buyer. As the case may be, the buyer may return the packaging at one of our delivery cars in exchange for an acknowledgement of receipt.
2. If the buyer does not fulfil this obligation within the time period, we shall be entitled to charge a reasonable fee for the period extending the period for return. If we have granted an extension of time for returning the packaging and the packaging was not returned, we shall be entitled without further notice to charge replacement costs and to refuse acceptance of packaging returned afterwards.
3. The identification labels on the returnable packaging may not be removed. Returnable packaging may not be exchanged or filled with other goods. The buyer shall be liable for any loss in value, exchange or loss regardless of his fault. The results of our estimation of returned packaging shall apply. The buyer is not entitled to give packaging to third parties; packaging may not be used as a storage container.
§ 7 Warranty
1. Wrong deliveries and obvious defects can only be considered if the buyer serves written notice including the delivery note without delay after discovery and no later than 2 weeks after receipt of the goods.
2. Unless otherwise agreed upon in writing, we deliver our products in commercial quality. This means that with respect to the stability of products, the indicated shelf life during handling and storage is ensured according to the regulations as specified on the packaging or in the purchase contract.
3. In the event of loss or damage of the goods and transportation at our risk, the buyer shall be obliged to provide us with all evidence necessary in order to claim compensation from the carrier. In case the buyer does not fully provide us with such evidence or does not provide us with such evidence in time, we shall be entitled to refuse any additional delivery whereas the buyer’s obligation to pay for a defective delivery shall remain in force.
4. Defects will only be considered if the buyer has complied with his obligations of inspection and complaint pursuant to Art. 377, 378 of the Handelsgesetzbuch (German Commercial Law). Complaints shall at least include the following:
- Type of material, batch number and label date of the rejected materials,
- Detailed description of the defect and/or the fault,
- Sample and quantity of the rejected materials,
- Remaining quantity in original packaging of the same rejected batch number,
- Processing and storage conditions of the material.
5. If the claims for compensation are justified, the buyer shall be entitled to compensation deliveries. If this is not practicable or can not be carried out in due time, the buyer shall be entitled at his option to withdraw from the contract or to request a reduction in price.
6. We will pay all transportation costs if the complaint was justified, in all other cases they shall be borne by the buyer.
7. The rejected goods have to be kept at our disposal. We then will decide upon the further treatment of the rejected goods. The buyer shall be obliged to treat the rejected goods in accordance with our decision.
§ 8 Retention of Title
1. The title in the goods shall not pass to the buyer until all payments arising from the business relation including additional claims, damage compensation or the like have been made in full.
2. We shall be entitled to claim possession of all retained goods without withdrawal from the contract and without granting additional notification periods, if the buyer does not fulfil his obligations in time. The return of retained goods shall be deemed as a withdrawal from the contract, only if we have explicitly confirmed so in writing.
3. The buyer shall be obliged to keep retained goods in good shape and at his expenses; furthermore he shall insure these at his expenses against loss or damage according to reasonable due diligence requirements. The buyer hereby transfers in advance all claims arising from insurance contracts to us.
4. As long as the buyer duly fulfils his payment obligations he shall be entitled to possess the retained goods in the ordinary course of business. This shall, however, not apply if and in so far as a prohibition of assignment in respect to the payment obligations was agreed between the buyer and his clients The buyer is not entitled to pledges or assignations in security or other charges. In case of resale the buyer shall be obliged to make the transfer of title subject to full payment by his clients.
5. The buyer hereby accepts the transfer in advance to us of all claims arising from the resale of retained goods including all ancillary rights and liens as well as cheques made in advance in order to secure all claims raised against the buyer in the course of the business relation. If retained goods are sold together with other goods for a total price, the transfer shall be limited in proportion to the invoice amount of the retained goods included therein. As long as the buyer fulfils his payment obligations in time, he shall be entitled to recover any claims arising from the resale by himself. He is not entitled to any pledges, liens or other assignments.
6. Should we deem that the enforcement of our claims is endangered, the buyer, upon request, shall inform his clients about the assignment and provide us with all necessary information and documentation. The buyer is obliged to inform us without delay about any third parties‘ access to the retained goods or the assigned claims. 7. If the value of the liens we are entitled to should exceed our claims against the buyer for more than 20% we shall be obliged to release such liens upon request by the buyer. The choice of the security to be released shall be at our discretion.
§ 9 Liability and Force Majeure
1. All buyer’s claims for compensation for direct or indirect damage including subsequent or collateral damages against us, our employees and our vicarious agents shall be excluded unless the damage is a result of intent or gross negligence. This applies in particular, but not exclusively, to all possible claims for compensation due to impossibility to perform, delayed performance, lack of guaranteed characteristics, breach of contractual or pre-contractual principal or secondary obligations as well as tortuous action including the so called product liability. In any case, the compensation obligation is limited to such damages, that could have been foreseeable as possible consequences of the action that caused the obligation to compensate.
2. During events of force majeure including statutory regulations, strikes and lock-outs, we shall be entitled to delay the delivery as long as such impediment persists or to withdraw in part or in full from the contract without being obliged to pay compensation for damage. This also applies to all other accidental events that hinder, delay or impede the production or the delivery of the goods, in particular in case of delayed or incorrect delivery by our suppliers and shortages of energy and/or raw materials.
§ 10 Limitation
All claims of the buyer against us – regardless of the legal reason – must be filed within 6 months after delivery and/or the date when the claim arose, whichever date is earlier.
§ 11 Place of Performance and Jurisdiction
The place of performance for deliveries, returned goods and payments is Strausberg. The place of jurisdiction is Strausberg. These General Terms and Conditions of Sale shall be governed by the laws of Federal Republic Germany.
§ 12 Severability
If any one or more of the provisions of these General Terms and Conditions of Sale is or becomes invalid, such invalidity shall neither affect the enforceability of remaining provisions or portions thereof nor the whole contract. The invalid provision shall be replaced with a mutually acceptable and valid provision that reflects as closely as possible the economic intent of the original provision.
General Purchasing Terms
§ 1 General Provisions
1.1 For all orders that are issued by Allresist GmbH (hereafter, “Allresist”), only these General Purchasing Terms and Conditions shall be valid insofar as nothing to the contrary has been expressly agreed. Provisions of the Supplier in its General Business Terms and Conditions or on its order confirmation are hereby expressly rejected. The unconditional acceptance of order confirmations or deliveries shall constitute no acknowledgment of such terms and conditions. The laws of the Federal Republic of Germany shall be valid for these Purchasing Terms and Conditions.
1.2 When the initial delivery is made in accordance with these Purchasing Terms and Conditions, the Supplier shall also acknowledge their exclusive validity for all additional orders.
1.3 Orders and mandates that are issued shall become binding if they are issued in writing or have been confirmed in writing. The offer may only then be accepted within a timeframe of 14 days if nothing to the contrary has been agreed.
1.4 For all contractual agreements, Allresist shall hold a right to make immediate termination without any notice with the termination to become effective at the end of the respective month. In the event of the invalidity of the aforementioned provision, the law shall be valid.
§ 2. Delivery and Shipping
2.1 The delivery shall be made based upon the order and/or the subsequent instructions issued by Allresist regarding the agreed timeframes. The Supplier shall make prompt notification of changes to the timeframes.
2.2 The Supplier shall state Allresist’s order numbers on all shipping documents, written correspondence and invoices.
2.3 The costs for the transport including the packaging, insurance and all other ancillary costs shall be assumed by the Supplier insofar as nothing to the contrary has been expressly agreed.
§ 3. Delivery Timeframes, Delivery Deadlines
3.1 The delivery timeframes or delivery deadlines stated on the orders shall be considered to be binding and the point in time when the goods arrive at the delivery destination shall be prevailing in this regard.
3.2 Allresist shall be entitled to refuse to accept goods which have not been delivered by the delivery date specified on the order and to send them back or have them stored by third parties at the Supplier’s expense and risk.
§ 4. Quality and Acceptance
4.1 The Supplier shall ensure that the goods fulfil the applicable norms and the state-of-the-art technology standards. In this regard, it shall make its best efforts to set up a management system and continue to develop it in accordance with ISO 9001.
4.2 Allresist reserves the right to inspect the goods for obvious and visible defects promptly upon their receipt and to only then make delivery acceptance of them. In the event that a complaint is made, the Supplier may be charged the costs for the inspection and the replacement delivery. For each type of defect, the deadline for making a notification of defects shall be respectively 14 days after their discovery. During the warranty period, the Supplier waives its defence of a belated notification of hidden defects.
4.3 The values determined during the incoming goods controlling shall be prevailing for measurements, weights and unit figures.
4.4 In the event that a contractual penalty for delayed delivery has been agreed, the claim to the contractual penalty shall continue to remain valid even then if it is not expressly asserted when delivery acceptance is made. Any more extensive claims shall continue to remain valid without being required to assert any special reservations when delivery acceptance is made.
§ 5. Prices and Payment Conditions
5.1 The agreed prices shall be considered to be the maximum prices; Allresist shall be entitled to receive any price discounts that become valid during the timeframe between when the order is made and the invoice is paid.
5.2 Invoices must be drafted immediately upon the shipping of the goods while stating the order and article numbers. The VAT must be separately indicated.
5.3 The payment shall be made subject to the proviso of proper delivery having been made as well as that the invoice states the correct prices and computations. In the event that a defect is discovered which is covered by the warranty, Allresist shall be entitled to withhold the payment until the warranty obligation has been fulfilled.
5.4 Invoices shall become payable within 14 days after invoicing less a 3% discount; within 30 days after invoicing net cash.
§ 6. Offsetting and Assignment
6.1 The Supplier shall be entitled to offset only with undisputed or legally-upheld claims.
6.2 The assignment of claims against Allresist shall be valid only subject to its written consent.
§ 7. Warranty
7.1 The Supplier’s warranty obligation shall be based upon the statutory directives insofar as nothing to the contrary is subsequently agreed. Upon Allresist’s initial request to do so, the Supplier shall indemnify Allresist from all third-party claims which are asserted owing to defects, the violation of third-party proprietary rights or product damage to its delivery as the result of its proportional causation. The Supplier shall ensure that it holds appropriate product liability insurance coverage.
7.2 The warranty timeframe shall amount to at least 12 months after delivery is made to the delivery destination. If the statutory warranty timeframe is longer, then this warranty timeframe shall be valid.
7.3 In the event that a defective delivery is made, the Supplier must, as Allresist so chooses, either make a free-of-charge replacement delivery, grant a price discount in accordance with the statutory directives regarding price discounts or eliminate the defect upon a free-of-charge basis. In urgent cases, Allresist shall be entitled, after consulting with the Supplier, to eliminate the defect on its own, or have it eliminated by a third party, or otherwise procure a replacement delivery at the Supplier’s expense. The same shall be valid if the Supplier enters into default regarding the fulfilment of its warranty obligation.
7.4 For replacement deliveries and rectification work, the Supplier shall be liable in the same scope as for the original delivery object–thus also for transport, infrastructure as well as labour costs without any restrictions in this regard. The warranty timeframe for replacement deliveries shall begin to run at the earliest upon the day of their arrival.
7.5 The Supplier shall be obliged to reimburse the appropriate costs for a recall campaign that is implemented in accordance with product liability law. Allresist shall endeavour to issue an opinion statement to the Supplier in advance as quickly as possible.
§ 8. Information and Data
Any drawings, drafts, models, company-internal data, etc., which we have provided to the Supplier for the rendering of the offer or for the implementation of an order, shall remain our property. They may not be used, reproduced or made available to third parties for other purposes and must be safeguarded with the due care of a prudent businessman.
§ 9. Third-Party Proprietary Rights
The Supplier assurances that third-party rights do not oppose the contractual use of the purchased goods–particularly that third-party rights are not being violated. Insofar as Allresist nonetheless has claims asserted against it owing to a possible violation of third-party rights such as, for example, of copyrights, patent rights and other proprietary rights, the Supplier shall indemnify it in this regard and also from any related obligations it incurs.
§ 10. Data Protection
The Supplier declares its irrevocable consent that any disclosed personal data may be handled and/or processed upon an order-specific basis subject to the fulfilment of the statutory provisions.
§ 11. Compliance
11.1 The Supplier shall be obliged, within the parameters of the business relationship with us, neither to offer or grant and/or demand or accept advantages in business dealings nor in dealings with public officials which violate applicable anti-corruption directives.
11.2. The Supplier shall be obliged, within the parameters of the business relationship with us, to conclude no agreements or engage in any relatedly-agreed patterns of conduct with other companies which intend to attain or affect a hindrance, restriction or distortion of competition in accordance with the valid antitrust laws.
11.3 The Supplier shall ensure that the respectively-valid laws regarding the regulation of the general minimum wage are followed and to also obligate its commissioned sub-suppliers in this regard in the same scope. Upon request, it shall document the following of the aforementioned assurance. In the event that the aforementioned assurance is violated, the Supplier shall indemnify us from any third-party claims and shall be obliged to reimburse us for any monetary fines which are imposed on us in this context.
11.4 The Supplier shall fulfil the respective statutory provisions regarding the handling of employees, health protection and environmental protection as well as workplace safety issues and work to reduce the detrimental effects of its work activities on human beings and the environment.
In this regard, the Supplier shall make its best efforts to set up and continue to develop a management system in accordance with ISO 14001. Moreover, the Supplier shall follow the principles of the Global Compact Initiative of the UN which essentially addresses the protection of international human rights, the abolishment of compulsory and child labour, the elimination of discrimination during hiring and employment practices, as well as the responsibility for the environment.
§ 12. Severability Clause
In the event that individual clauses of these Purchasing Terms and Conditions should, in whole or in part, be or become invalid, this shall not affect the validity of the remaining clauses and/or the remaining passages or such clauses or the contractual agreement overall. The parties must replace an invalid provision with such a valid provision which most closely corresponds to the commercial intent of the invalid provision.
§ 13. Place of Performance and Legal Venue
The place of performance for the deliveries and the payments shall be Strausberg.
The legal venue shall be the commercial residence of Allresist GmbH in Strausberg.
§ 14. Deviating Understandings
Any understandings that are reached that deviate from the content of these General Purchasing Terms and Conditions shall be valid only if we have acknowledged them in writing.